Citation Nr: 0313777
Decision Date: 06/24/03 Archive Date: 06/30/03
DOCKET NO. 99-22 069 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for tinea pedis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. T. Jones, Counsel
INTRODUCTION
The appellant had active duty from March 20, to March 29,
1965. He also served with the Army National Guard of Alabama
for 27 years and four days, separating in July 1980. This
service includes several periods of active duty for training,
to include from June 16 to July 1, 1973.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a January 1999 rating decision by the
Montgomery, Alabama, regional office (RO) of the Department
of Veterans' Affairs (VA), which denied entitlement to
service connection for tinea pedis. In January 2001 the
Board remanded this case to the RO for further development.
Such has been completed and the case is back before the Board
for appellate disposition.
FINDINGS OF FACT
1. The chronic tinea pedis did not originate during active
duty or active duty for training.
2. The pre-existing chronic tinea pedis did not undergo a
chronic increase in severity beyond natural progression
during the appellant's periods of active duty for training.
CONCLUSION OF LAW
Chronic tinea pedis was not incurred in or aggravated by
military service. 38 U.S.C.A. §§ 101, 1110, 1131, 1153 (West
2002); 38 C.F.R. §§ 3.6, 3.303, 3.306 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board notes that there has been
a significant change in the law during the pendency of this
appeal with the enactment of the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(2000). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002). This law eliminates the concept of a well-grounded
claim and redefines the obligations of the VA with respect to
the duty to assist. The new law also includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The final
rule implementing the VCAA was published on August 29, 2001.
66 Fed. Reg. 45,620-32 (Aug.29, 2001) (codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a)).
In this regard, the VA has informed the appellant of
information and evidence needed to substantiate and complete
a claim for service connection in the statement of the case
and supplemental statements of the case. In May 2001
correspondence, he was informed of what evidence the VA would
obtain. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Secondly, the VA has a duty to assist the claimant in
obtaining evidence necessary to substantiate the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)). The record shows
that the VA has obtained all records identified by the
appellant. All available service medical records have been
obtained, and the Board has undertaken all reasonable steps
to obtain private medical records identified by the veteran.
The veteran has indicated that additional records of
treatment of his condition are no longer available.
Further, in view of the current medical evidence the Board
finds a VA examination is not warranted. Thus, the Board
concludes that the requirements of the VCAA have been
satisfied.
Factual Background
In this case the veteran claims that that he has had tinea
pedis since sometime after he was called to active duty in
connection with the events surrounding the Montgomery to
Selma Alabama in March 1965.
A review of the service medical records show that several
periodic examinations conducted between 1959 and October 1965
showed no abnormality of the feet. On a March 1973 periodic
report of medical examination, the clinical examination of
the skin and feet was normal. While on active duty for
training he was seen at the dispensary on June 28, 1973 at
which time t he was treated with Desenex ointment for tinea
pedis. On a June 1977 National Guard periodic report of
medical examination, the appellant indicated he did not have
a history of skin or foot problems and the clinical
examination of the skin and feet was normal.
At a hearing at the RO in March 1998 regarding other VA
compensation claims made by the appellant he indicated he had
developed athlete's foot after his National Guard unit had
been called up in connection with the Montgomery to Selma
Alabama march.
In January 1999, J. B. N., M.D., reported that he had treated
the veteran for fungus of the feet since November 1972, which
could have been tinea pedis of dyshidrosis. The veteran has
since indicated that Dr. N. has retired and the veteran was
unaware of how to obtain his records.
VA outpatient treatment records from 2000 to 2001 show that
the appellant was prescribed anti-fungal medication.
Treatment records from a private dermatologist pertain to
keratotic lesions on the bottom of the left foot in May 2001.
The diagnosis was a corn or callus. The doctor also noted
that the appellant had complaints of a fungus on his distal
toenails. No fungus was noted on the toes, but there were
onychomycotic changes on the left great nail. The doctor
thought this might represent a fungus and medication was
prescribed. The doctor also noted zoster in July 2001.
II Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002).
The term "active military, naval, or air service" includes
active duty, any period of active duty for training during
which the individual concerned was disabled or died from a
disease or injury incurred or aggravated in line of duty, and
any period of inactive duty training during which the
individual concerned was disabled or died from an injury
incurred or aggravated in line of duty. 38 U.S.C.A. §§
101(24), (West. 2002); 38 C.F.R. § 3.6(a) (2002).
Service connection may be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2002).
A veteran is presumed to have been in sound condition when
examined, accepted, and enrolled for service, except as to
defects, infirmities, or disorders noted at the time of
examination, acceptance, and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment. 38 U.S.C.A. § 1111
(West 2002); 38 C.F.R. § 3.304(b) (2002).
A pre-existing injury or disease will be considered to have
been aggravated by service where there is an increase in
disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38
C.F.R. § 3.306 (2002).
The appellant contends that he developed tinea pedis soon
after he was activated for duty during the Montgomery to
Selma civil rights march in March 1965. In this regard there
is no medical evidence showing the presence of tinea pedis
during his active duty in March 1965. Additionally, a
periodic examination conducted in October 1965 showed no
evidence of tinea pedis. The earliest clinical record of any
treatment for tinea pedis is contained in a 1999 statement
from Dr. N who stated that he had treated the veteran for a
fungus of the feet since 1972. This is more than eight years
following his period of active duty. Additionally, there is
no medical evidence which relates the tinea pedis to his
March 1965 active duty.
A service medical record notes the appellant was treated for
tinea pedis on one occasion in July 1973 while he was on
active duty for training. However, this treatment record and
the remaining evidence is insufficient to demonstrate that
the pre-existing tinea pedis, first clinically shown in 1972,
underwent a chronic increase in severity during this period
or any subsequent period of active duty for training.
Accordingly the Board finds that the weight of the evidence
is against the appellant's claim and service connection for
tinea pedis is not warranted.
ORDER
Service connection for tinea pedis is denied.
____________________________________________
ROBERT P. REGAN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.